**Exhibit10.98**

 

FIFTH AMENDMENT TOGAS SALES AGREEMENT

 

ThisFifth Amendment to Gas Sales Agreement (“Amendment”) is executed as of June 30,2003, by Tipperary Oil & Gas (Australia) Pty Ltd (ACN 077 536 871) of GPOBox 1100, Brisbane, Queensland, Australia 4001 (“Seller”), and QUEENSLANDFERTILISER ASSETS LIMITED (ACN 011 062 294) of 76 Arthur Street, Roma,Queensland, Australia (“Buyer”).

 

WITNESSETH:

 

A.The Seller and Buyer have previously delivered Gas Sales Agreement dated September 28,2001, as amended by Amendment to Gas Sales Agreement dated as of May 30, 2002,Second Amendment to Gas Sale Agreement dated as of September 1, 2002,Third Amendment to Gas Sale Agreement dated as of January 1, 2003 andFourth Amendment to Gas Sale Agreement dated as of March 31, 2003(collectively, the “Original Agreement”) governing the sale and supply of Gasto Buyer subject to the terms and conditions set forth therein including,without limitation, the Seller and the Buyer obtaining necessary financingcommitments, under terms reasonably acceptable to each of them, by June 30,2003 for (a) Buyer to construct and commission the Plant and the Pipelinebetween June 30, 2003 and the Commencement Date and (b) Seller to drilland complete the number of wells, and install laterals and compressors, asSeller reasonably deems necessary between June 30, 2003 and theCommencement Date to deliver the ACQ to the Delivery Point and meet PipelinePressure requirements; and

 

B.The Seller and Buyer have agreed, subject to the terms and conditions set forthbelow, to amend the Original Agreement to (1) extend the date for Seller andBuyer to obtain their respective financing commitments to December 31,2003 and (2) otherwise modify the Original Agreement as set forth herein.

 

NOW,THEREFORE, for a sufficient consideration received by each, the Seller andBuyer agree to amend the Original Agreement as follows.

 

**1.**              **Definitions****.** Thedefinition of Commencement Date in the Original Agreement is hereby amended andreplaced in its entirety as set forth below.

 

“CommencementDate” means the later of:

 

(a)          1 June 2006; or

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(b)         the date after 1 June 2006 on which theBuyer takes the first delivery of Gas from the Seller under this Agreementpursuant to the notice given under Clause 2.4;

 

providedthat, if Buyer hasnot previously taken the first delivery of Gas from the Seller underSubparagraph (b) above, the Commencement Date shall be deemed to occur on 1 November 2006.”

 

**2.**              **Sale and Purchase****.**Section 2.1,the preamble of Section 2.2 and Section 2.4 of theOriginal Agreement, each stating conditions precedent to Seller’s and Buyer’sobligations under the Original Agreement, are hereby amended and replaced intheir entirety as set forth below.

 

“2.1The obligations of the Parties under the Agreement, other than theirobligations under Clauses 17, 20 and 24, are subject to and do notbecome binding unless:

 

(a)          Buyer: (i) establishes and maintains itscreditworthiness to the reasonable satisfaction of the Seller, and (ii) theBuyer has in place the necessary financing commitments, under terms reasonablyacceptable to Buyer and Seller, that will foreseeably allow Buyer to constructand commission the Plant and the Pipeline between December 31, 2003 andthe Commencement Date. If these conditions precedent are not satisfied by December 31,2003, then this Agreement will terminate (except for Clauses 17, 20 and 24and the enforcement of any right or claim which arises thereunder), unless theSeller agrees in writing to extend the time required to meet these conditions.

 

(b)         Seller has in place the necessary financingcommitments, under terms reasonably acceptable to Buyer and Seller, that willforeseeably allow Seller to drill and complete the number of wells, to installlaterals and compressors, as Seller reasonably deems necessary between December 31,2003 and the Commencement Date to deliver the ACQ to the Delivery Point andmeet Pipeline Pressure requirements. If these conditions precedent are notsatisfied by December 31, 2003, then this Agreement will terminate (exceptfor Clauses 17, 20 and 24 and the enforcement of any right of claimwhich arises thereunder), unless Buyer agrees in writing to extend the timerequired to meet this condition.”

 

“2.2In addition to the conditions in Clause 2.1, Buyer shall begin actualconstruction of the Plant by June 1, 2004, and diligently prosecute actualconstruction of the Plant and the Pipeline thereafter in an orderly and prudentmanner through and until the Commencement Date.”

 

“2.4The Buyer must deliver written notice to the Seller not less that forty-five(45) Business Days’ before the Day on which the Buyer intends to 

 

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takethe first delivery of Gas from the Seller under this Agreement; providedthat Seller shall have no obligation to supply Gas to Buyer before 1 March 2006.”

 

**3.**              **Authority, Effect and Governing Law****.**Section 20.1 (a), containing arepresentation and warranty regarding Seller’s and Buyer’s corporateproceedings with respect to the Original Agreement, is hereby amended andreplaced in its entirety as set forth below.

 

“20.1Each Party represents and warrants to the other Party now and at all timesduring the Term:

 

(a)It is a company duly incorporated under the laws of Queensland and has the powerand authority to enter into this Agreement and will have undertaken andcomplied with the necessary corporate proceedings to ensure this Agreement isenforceable and binding on it or before December 31, 2003 (unlessotherwise terminated on or before that date);”

 

**4. Annexure 1.** Annexure 1 attached to the OriginalAgreement, containing the Gas Price formula, is hereby deleted in its entiretyand replaced by Annexure 1 attached to this Amendment.

 

**5. Capitalized Terms****.** All capitalized terms shall have the meaningassigned to them in the Original Agreement, except as added, amended orotherwise restated herein or unless the context clearly requires otherwise. Inaddition: references in the Original Agreement to the “Agreement,” “hereof”, “herein”and words of similar import shall be deemed to be references to the OriginalAgreement as amended hereby.

 

**6. Representations.** The Seller and Buyer respectively representand warrant that all of the representations and warranties contained in theOriginal Agreement (and any certificates and documents executed pursuantthereto or contemplated thereby) are true and correct in all material respectson and as of the effective date of this Amendment.

 

**7. Conflicts and Continuation****.** In the event that this Amendment conflictsor is inconsistent with the Original Agreement, this Amendment shall control.Except as specifically amended herein, all of the terms and conditions of theOriginal Agreement (and any certificates and documents executed pursuantthereto or contemplated thereby) shall remain in full force and effect inaccordance with their respective terms.

 

**8. Severability****.** In the event anyone or more provisions contained in the Original Agreement or this Amendmentshould be held to be invalid, illegal or unenforceable in any respect, thevalidity, enforceability and legality of the remaining provisions containedherein and therein shall not be affected in any

 

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wayor impaired thereby and shall be enforceable in accordance with theirrespective terms.

 

**9. Acknowledgment.** The Seller and Buyer respectively ratify andconfirm that the Original Agreement (and any certificates and documentsexecuted pursuant thereto or contemplated thereby) remain in full force andeffect in accordance with their respective terms, except as amended hereby. Therepresentatives of the Seller and Buyer executing this Amendment each representand warrant to the others that they are duly appointed agents or officers ofthe party to the Original Agreement as designated in the signature lines below,they have full power and authority to execute and deliver this Amendment onbehalf of the party to the Original Agreement as designated below, they haveobtained all corporate or other authorizations as may be applicable to each ofthem.

 

EXECUTED as an agreement.

 
| THE, COMMON SEAL of  TIPPERARY OIL & GAS (Australia)        | )      |                                  |
|----------------------------------------------------------------------|--------|---------------------------------------|
| Pty LTD (ACN 077 536 871  was duly affixed to this document in  | )      |                                  |
| accordance with its  articles of association in the presence of:     | )      |                                  |
|                                                                 |   |                                  |
|                                                                 |   |                                  |
| /s/ Richard A. Barber                                                |   |                                  | /s/ David L. Bradshaw |
| Signature of Secretary                                               |   |                                  | Signature of Director |
|                                                                 |   |                                  |
| Richard A. Barber                                                    |   |                                  | David L. Bradshaw |
| Name of Secretary – please  print                               |   | Name of Director – please  print |
|                                                                 |   |                                  |
|                                                                 |   |                                  |
| THE COMMON SEAL OF  QUEENSLAND                                       | )      |                                  |
| FERTILIZER ASSETS LIMITED  (ACN 011 062 294)                         | )      |                                  |
| was duly affixed to this  document in accordance                     | )      |                                  |
| with its Articles of  Association in the presence of:                | )      |                                  |
|                                                                 |   |                                  |
| /s/ H. J. K. Howes                                                   |   |                                  | /s/ John F. Babbitt |
| Signature of Secretary                                               |   | Signature of Director                 |
|                                                                 |   |                                  |
| H. J. K. Howes                                                       |   |                                  | John F. Babbitt |
| Name of Secretary – please  print                               |   | Name of Director – please  print |

 

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**ANNEXURE 1**

 

**GAS PRICEFORMULA**

 

1.               TheGas Price at the Delivery Point for the first two Contract Years will be [***]per Gigajoule. Starting with the third Contract Year (but not later than 1 January 2008),the floor price of Gas delivered to the Delivery Point will be [***] perGigajoule, as adjusted herein (“Floor Price”). The Gas Price is as followsafter the first two Contract Years:

 

(a)          Ifthe average fob price for urea produced and shipped from the Plant in anycalendar quarter starting with the third Contract Year (but not later than 1 January 2008)and any subsequent calendar quarter thereafter throughout the Term is less thanA$220 per metric ton, the Gas Price is equal to the Floor Price, as adjusted;

 

(b)         Ifthe average fob price for urea produced and shipped from the Plant in anycalendar quarter starting with the third Contract Year (but not later than 1 January 2008)and any subsequent calendar quarter thereafter throughout the Term is more thanA$220 per metric ton, the Gas Price shall be as follows, if and only if, itresults in a price higher than Floor Price, as adjusted:

 

Gas Price = [***] {1 + 0.75 (fob urea price -220)/220} A$/GJ

 

(c)          Buyeragrees to permit Seller to audit Buyer’s records as may be reasonable ornecessary to validate the average fob price for urea produced and shipped fromthe Plant each calendar quarter;

 

(d)         Inaddition to adjustments to the Gas Price set forth in Subclauses 1 (a) and(b) above, the initial Floor Price of [***] will be increased each ContractYear starting with the third Contract Year (but not later than 1 January 2008)by either a factor of 2%; or 70% of the CPI; whichever is lower, compoundedeach year beginning at 28 September 2003 throughout the Term of theContract;

 

(e)          TheParties agree that if the average market price of coalbed methane in the BowenSurat Basin area of Queensland during the fifteenth Contract Year, of theAgreement has escalated to a level in excess of $A 0.50 per Gigajoule above ofthe adjusted Floor Price in effect at the end of the fifteenth Contract Yearunder Subclauses 1 (a) and (b), the Floor Price shall increase byone-half of such excess. If the Parties cannot agree to the average coalbedmethane market price pursuant to Clause 3 below, they shall agree toappoint an independent arbitrator who shall make such determination.Furthermore, the Parties agree that beginning with the first day of thesixteenth Contract Year of the Agreement, the 75% participation factor in ureapricing per Subclause 1 (b) above, will become 50%; and

 

(f)            Forpurposes of this Annexure 1, Subclauses 1 (a), (b) and (d), it is agreedthat the price for urea and the Gas Price are exclusive of Goods and ServicesTax (GST).

 

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*** Text has been omitted and filed separately with the Securities andExchange Commission. Confidential treatment has been requested under 17 C.F.R. section 240.24b-2.

 

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2.               Forpurposes of calculating any adjustments and averages in respect the fob priceof urea, it is agreed that:

 

(a)          calendarquarters shall begin on January, April, July and October of eachContract Year;

 

(b)         Buyershall provide Seller its calculation (and supporting materials reasonablyacceptable to Seller) for the average fob price for urea within ten (10) Daysafter the end of each calendar quarter;

 

(c)          Sellershall utilize Buyer’s calculation of the average fob price for the precedingcalendar quarter to calculate (i) the final Gas Price in effect during thepreceding calendar quarter (and any resulting increases to the amountsspecified in the invoices for each Month during the preceding calendar quarterand (ii) the estimated Gas Price in effect for each Month during the thencurrent calendar quarter (which Seller shall utilize for purposes of preparinginvoices for Delivered Gas during the then current calendar quarter, subject toadjustment at the end of that calendar quarter in a like manner following the Buyer’scalculation of the average fob price of urea for that calendar quarter), and

 

(d)         Sellerwill include charges resulting from an increase or credits resulting from adecrease in the final Gas Price for the preceding calendar quarter in (i) theinvoice for the first Month of the then current calendar quarter or, (ii) thefirst invoice as maybe practicable if the Buyer fails to deliver thecalculation of the average fob price for urea when due, in which case Buyershall pay interest at the BB Rate plus two percent (2%) from the date theadditional charge would have become due (if Buyer delivered the average fobprice calculation on time) until the date the charge is paid.

 

3.               Forpurposes of calculating adjustments and averages in respect of average coalbedmethane market prices during the fifteenth Contract Year, it is agreed that:

 

(a)          Sellershall utilize (i) the prices set forth each week/Month during the fifteenthContract Year for spot prices for the Bowen Surat Basin area of Queenslanddelivered to pipeline as published in a recognized publication utilized by thegas pipeline industry to establish spot price quotes in the Bowen Surat Basinarea of Queensland, which is reasonably acceptable to Seller and Buyer or (ii)prices for sales of coalbed methane gas in the Bowen Surat Basin area ofQueensland during that period which are comparable in availability to market,quality, quantity and time of sale of Delivered Gas (as compiled by Sellerutilizing reasonable commercial endeavours from gas pipeline industry sourcesin Queensland, Australia which are reasonably acceptable to Buyer) if arecognized publication does not then exist;

 

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(b)         Sellershall provide Buyer its calculation (and supporting materials reasonablyacceptable to Buyer) for the average market price of coalbed methane gas duringthe fifteenth Contract Year upon request; and

 

(c)          Sellershall charge, and Buyer shall pay, the Floor Price (as adjusted pursuant to Subclause1 (e) for all Delivered Gas beginning with the sixteenth Contract Year.

 

4.               Adjustmentsto the Gas Price pursuant to Subclauses 1 (a), (b), (d) and (e) shall becumulative.

 

5.               EitherParty, at its own expense, shall have the right to examine, copy and audit allof the books and records of the other Party related to the calculation of theaverage fob price of urea, or the average market price of coalbed methane,which are provided by the other Party for purposes of adjusting the Gas Pricepursuant to this Annexure, as follows:

 

(a)          eachParty shall have the right to audit and copy the books and records of the otherParty after delivering written notice not less than fifteen (15) Business Daysin advance of the date of the proposed audit;

 

(b)         allexaminations and audits shall be conducted at the office of the Party beingaudited on one or more consecutive Business Days, during normal business hours.The Party being audited shall provide access to personnel and relevant records,as may be reasonable or necessary to assist the auditing Party’s examiner orauditors to complete the examination or audit as expeditiously as possible;

 

(c)          tothe extent that the auditing Party should take exception to any portion of theother Party’s relevant books and records, the auditing Party shall provide theother Party with a written report summarizing reasons for the exceptions taken.The audit report must be delivered no later than thirty (30) days following thecompletion of the examination or audit. The other Party shall have fifteen (15)days from receipt of the report in which to prepare and submit a writtenresponse to the exceptions taken by the auditing Party. If, after reviewing theother Party’s response, any disagreements remain, the Parties’ designatedrepresentatives shall meet for the purposes of resolving those disputes. If,after meeting to discuss the remaining disputes, the representatives are notable to reach a compromise reasonably acceptable to each, either Party mayrequest the initiation of arbitration pursuant to this Agreement; and

 

(d)         thenotices from either Party of an audit shall designate the agent or employeeassigned to conduct the examination or audit on their behalf. The auditingParty shall cause the designated employee to work diligently to complete theexamination or audit in a reasonable and prudent manner.

 

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